Dyspeptic retired Marine wife/tech wench attempts to enlighten the great unwashed of the blogosphere while dodging snarky commentary from the local knavery.

March 15, 2010

Winning at all Costs

George Pickett: Colonel, think on it now. Suppose that we all joined a club, a gentlemen's club. After a time, several of the members began to intrude themselves... into our private lives, our home lives. Began telling us what we could and couldn't do. Well, then, wouldn't any one of us have the right to resign? I mean, just resign. That's what we did. That's what I did and now these people are telling us we don't have that right.

Pete Longstreet: I got to hand it to you, General. You certainly do have a talent for trivializing the momentous... and complicating the obvious.

Reading the debate between Jonah Goldberg, Andy McCarthy and Paul Mirengoff, I couldn't help but think of one of my favorite scenes from the movie, Gettysburg. In it, the Confederate army are sitting around a campfire debating the merits of The Cause. In the end, their passionate and heartfelt rhetoric is trumped by the dour practicality of an experienced battle commander:

I don't think on that too much anymore. I guess my only cause is victory. This war comes as a nightmare. You pick your nightmare side. Then you put your head down and win.

I've mostly stopped writing about the war. I won't go into the reasons for that here: I could write a book on that topic and still not begin to cover it well. Let's just say it's a sore subject for this Marine wife. But it strikes me that this issue is being overcomplicated with a lot of talk about Islam and Islamism and treason when in essence the merits of the demand for transparency with regard to the so-called 'al Qaeda 7' are really quite simple.

I don't know - and frankly don't care - what motivated these attorneys to represent accused enemy combatants. Questions of motivation are not only politically charged, but nearly impossible to prove definitively. So far as the merits of the disclosure request go, it doesn't even matter whether some detainees were innocent.

The simple fact of the matter is that if any of the attorneys hired by Eric Holder's Justice department are guilty of offenses like these, they are - by definition - unfit to hold public office. In fact, I'd argue that if they are guilty of such acts, they deserve to be disbarred:

We obtained Justice Department accounts of some of those incidents under a Freedom of Information Act request. Examples included an incident in which a lawyer sent his detainee client the transcript of a virulently anti-American speech that compared military physicians to Joseph Mengele, the Nazi doctor of Auschwitz, called DOJ lawyers "desk torturers" and suggested that the "abuses carried out by U.S. forces at Abu Ghraib . . . could involve the President in the commission of war crimes."

Other incidents listed in the FOIA material included: a lawyer who was caught in the act of making a hand-drawn map of a detention camp's layout, including guard towers; a lawyer who sent a letter to his detainee client telling him that "we cannot depend on the military to do the right thing" and conveying his message of support to other detainees who were not his clients; lawyers who posted photos of Guantanamo security badges on the Internet; lawyers who provided news outlets with "interviews" of their clients using questions provided in advance by the news organization; and a lawyer who gave his client a list of all the detainees.

They ought to be disbarred because defense attorneys are bound by the rule of law. In fact, it is arguable that attorneys, by virtue of the legal expertise they possess, should be held to an even higher standard than laypersons. Even the most sincere and zealous advocates cannot pick and choose which laws they will obey, no matter how desirable the end result may seem to them:

At Guantanamo, "legal mail" is strictly limited to correspondence between counsel and a detainee that is related to representation of the detainee, privileged documents and publicly filed legal documents. But even "legal mail," according to the rules mandated by Judge Joyce Hens Green in a 2004 protective order, prohibits lawyers from giving detainees information relating to military operations, intelligence, arrests, political news and current events, and the names of U.S. government personnel. Lawyers are forbidden from discussing other detainee cases not directly related to the representation of their own client.

The real irony here is that these attorneys justify their own malfeasance by claiming their actions were necessary to uphold the rule of law. But one does not defend the rule of law by violating it.

Regardless of the legal merits of their respective positions, a common thread unites Pentagon interrogators, Gitmo personnel and civilian counsel who volunteered to defend the sworn enemies of the United States: exigency. They all claim their acts were necessary to save lives and uphold the rule of law.

The Department of Defense claims it was trying to save the lives of millions of American citizens, the overwhelming majority of whom are innocent. The civilian attorneys, on the other hand, claim they were protecting the lives of a small number of accused enemy combatants (some of whom may be innocent). That's a pretty fundamental difference but in the end it, too, is irrelevant. Arguments can be made regarding the relative weight to be applied to ends and means when protecting millions of innocent lives vs. a few possibly innocent lives. The fact remains, however, that having explicitly rejected exigency as immoral and unethical, these attorneys cannot then claim exigency as a defense for their own actions. They cannot claim to defend the rule of law by violating it. And clearly they cannot be trusted to act on behalf of the U.S. government if they refuse to abide by our laws.

Questions about whether Islam and Islamism are one and the same or whether the acts of detainee counsel rise to the level of treason are interesting questions, but in the end they, too, are beside the point.

We deserve to know if the Eric Holder has nominated attorneys who violated both the law and the code of professional conduct they promised to uphold when they became members of the bar. There is no separate code or set of rules for detainee counsel. One does not prove the end does not justify the means by adopting the very tactic one claims to oppose. If winning at all costs - even in wartime - violates the basic tenets of civil society, one has to ask: how do these men and women sleep at night knowing they have become everything they claim to hate?

Posted by Cassandra at March 15, 2010 09:28 AM

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...one has to ask: how do these men and women sleep at night knowing they have become everything they claim to hate?

One has to answer that they believe the end *does* justify the means when *their* guy is in the Oval Office, even though they pontificate otherwise when their guy *isn't*.

The Left has only one inviolable core belief -- "Anything we do is justifiable, because we're morally-superior beings."

Cassandra, they do not think about this, period. Being an attorney and having worked in the large firms, these defense attorneys are not selected by the partners, these are volunteers. They volunteer for this job for the ideological reasons and for the brownie points they score at the cocktail parties.

What I find amusing about all of this is that these firms openly brag about the pro bono service they provide to sworn enemies of the United States... in company where they perceive it will "benefit" them.

So clearly they are not averse to exposing their actions for commercial gain. And yet these same firms are the first to cry "McCarthyism!!! Oppression!!!!" when information they have previously publicized - nay, bragged about - is revealed to the public at large.

Also, how many of these intrepid defenders of last resort felt strongly enough about that principle that they provided pro bono representation to US servicemen and women accused of war crimes or violations of the ROE?

Don't those who have put their lives on the line deserve the best and most zealous defense possible?

These are post-modern lawyers working for The Cause. It feels so correct, so just to be defending these oppressed people against the Euro-hegemony, that they MUST be in the right. After all, their feelings trump the dry, out-dated, Anglo-American ideas of law and warfare. That's how I read it. Plus the glory (from the Left/Islamist/who knows) of taking on the government oppressors for a just cause.

What I find interesting is that many of these attorneys appear to be doing all this for other reasons. That in and of itself is a breach of ethics. So much for the clients. It also appears some of them skated up to the edge of subborning perjury.

I have no problem with an attorney making a good faith effort to iron out some of the legal challenges created when we started detaining these people, but doing it to advance another agenda is flat out wrong.

I find the "everyone deserves a zealous/competent defense" excuse problematic for another reason: it implies that "but for" pro bono civilian representation, these detainees would not have received representation at all, or that their military defense counsel would not have represented them zealously. IOW, only civilian attys are competent and honest.

Pro-bono defense of terrorists is "transgressive" and hence earns you points at a certain kind of cocktail parties. Pro-bono defense of US servicemen would not be considered transgressive and hence would be useless for scoring points in these social circles.

We have a society in which many 50-year-olds are have the mental outlook of 13-year-olds trying to shock their parents.

It has often occurred to me that these bozos want all the credit for bravely fighting the power while cravenly demanding to be protected from the slightest negative consequence of their freely made decisions.

We admire acts of conscience because in many cases they subject the actor to persecution and/or recriminations. I don't see much of anything admirable in playing the part while demanding to be shielded from the consequences.

The whole thing rather reminds me of Keith Olbermann shouting from the rooftoops (via an MSNBC microphone) that he was bravely speaking out against a White House that never made a single attempt to silence him :p

Brave, that. Especially when you can command a multi-million dollar salary for doing so.

I think it to be without question that, under the basic tenets of a representaive republic, the identities of those hired by the government to carry out its lawful functions should be public knowledge.

"all the credit for bravely fighting the power while cravenly demanding to be protected from the slightest negative consequence of their freely made decisions"

A lot of "progressives," especially those of the academic, lawyer, and journalist types, remind me of a dog which fancies itself a mighty wolf, runs around the neighborhood biting people, comes back to its owner and bites him a few times too, and then expects to be fed and petted./

"In fact, it is arguable that attorneys, by virtue of the legal expertise they possess, should be held to an even higher standard than laypersons."

That's not arguable. That's a fact. It's also true that each defendant is entitled to a zealous defense, within the bounds of the law. That "within the bounds of the law" part is as important as the "zealous." Those lawyers who pass intelligence along to their clients are committing a crime, as well as a breach of ethics. For lawyers, there is no such thing as the "ends" justifying the "means." Rather, the requirements of due process are to be adhered to. Period.

Further, lawyers who have represented any of these detainees are forbidden, both ethically and by law, to subsequently work on any matter relating to their former clients.

That means that any lawyer who has represented a terrorist client, is not allowed to work on policy relating to those clients.

BO made a big deal out of this kind of thing during his campaign, only he at the time was talking about lobbying. Lobbyists don't have the same ethical rules as attorneys, unless Congress passes a law.

That's why it was such a big deal when Sen. Grassley asked Mr. Holder for a list of people recently hired by DOJ who had worked for terrorist clients. Holder's office should have been able to pass back a response the next day, and Holder's name should have been on the list.

They all claim their acts were necessary to save lives and uphold the rule of law.

The reason that these DOJ lawyers are representing the terrorists is that they DENY THE EXISTENCE of 'the rule of law'. They acknowledge only political expediency as their highest law. They really do not care for the terrorists one way or t'other. What they do see is the opportunity to discredit the very concept of "the rule of law" and these murderers are just pawns in a larger game.

The very concept of "the rule of law" is that such a law applies universally to all men under all circumstance. This is a hateful concept to those who believe only in political expediency.

If people behaved themselves, we wouldn't need a whole lot of laws. They come about because people don't resolve conflicts well on their own, so laws are created to do what people ought to have done on their own.

Just because there's a law about something doesn't mean people have to go to court to resolve a conflict. Some people can (and do) resolve conflicts on their own and when they do that, things like divorce and contract law never even come into play b/c the parties reached an agreement they're both satisfied with on their own. Their agreement could well violate the law, but so long as they're both happy with it and no one else complains, the law may never even come into play. Laws are violated every day, but until someone complains or causes a big problem for other people, nothing happens.

I've never really understood why people blame lawyers instead of the folks who create these situations in the first place. It's kind of like blaming traffic cops for traffic or accountants for taxes - they didn't create the problems they're trying to solve.

I agree the law seems overcomplicated at times, but then society has become very complicated and people have become less self reliant.

The other reason (I think) we have lawyers is that government has grown so much, and as it has grown it has made more rules. But again, I don't think lawyers can be blamed for this. Just my two cents.

I had the rare privilege of working with an attorney. Those who know, know.

We were prosecuting. That man worked tirelessly on our behalf. He is an honorable man, and by that I don't mean that he won our case for us. He did it within the framework of the rules. There were some things he was absolutely disgusted by, but he didn't make the rules.

He is working on changing a few of them so people he defends and prosecutes will get a fair trial.
One of the things that totally fascinated me about this case (think Dr. Frankl in Auschwitz) was his contacts with the defense counsel.

In my naivete, I thought he would be a bristling, belligerent, well, attorney. He was indignant on my behalf, but he wasn't stupid. He didn't treat the defense as if they had no right to occupy the planet. In our meetings, we read some of the evidence that the defense counsel had to give us as part of discovery. After snorting with laughter over one expert witness's report, I called the writer of it a slut. My attorney called me a *bad client* between bouts of laughter.

While we got to know him as a person, he would never do anything unethical or to get himself disbarred. The disgrace for him would be more than public humiliation or the ruin of his practice; he is one of those people who is in the practice of law because he likes people and hates to see the little guy take it on the chin.

I have to speak up for lawyers; I have one who has been our advocate and battled on our behalf; and in the process showed us how the rules were there to protect him as well.

These lawyers...I think they are in the minority of attorneys. There are those who will tamper with witneses; destroy evidence, etc. They do because they know they can't win by the rules.
They are to be pitied and weeded out.

As to the military not doing their best to defend them...I don't know. Wouldn't that be a conflict of interest?

Considering the vast sums that our Hostess collects in advertising revenue and sales of VC Commemorative Stuffed Marmosets, I doubt that there's anything but hot air above her pay grade. I would like to apologize, however, if my brief comment last evening stating that I didn't agree with anything that had been said (thus far) appeared rude. Initially I had intended to post an overly-long, detailed analysis and diatribe when my computer suddenly ran low on the bits and bytes alloted daily for righteously indignant rants regarding my colleagues in the legal profession. Plus I had to go home. Plus I was really crabby from being a lawyer all day. None of which excuses me from being rude, even if unintentionally so.

I'll say this, and then I'll shut up: I know three attorneys that volunteered their time and skills to defend Guantanamo detainees. Their political views (left) mattered, of course, because it was from that vantage that they concluded that George Bush trappling the Constitution. Once they got into the fray, however, it was about the LAW writ large, and I believe that, in that regard, they accounted themselves well and in the highest traditions of their profession. I can't say that I wanted them to succeed, in fact I had hoped that they'd fail. But they made some damned powerful arguments, as good lawyers will, and I respect them for that.

As I said on another post on a liberal site, volunteering to defend detainees should not, in and of itself, be a disqualifier for public office. If I implied that (and I don't think I did), then I can only say that I must not have done a very good job of getting my point across.

The point I thought I was making is that Burlingame asks an important question. Some of the attorneys (Lynne Stewart, anyone?) who volunteer to defend accused terrorists have gone beyond zealous advocacy. They have broken the law and violated legal ethics. They have access to classified data and they refuse to keep it confidential. Or they violate court orders specifically directing them to exercise discretion.

I have a problem with that, because a person who violates the law or legal ethics shouldn't be trusted with a position in the Justice Department. And if the list of lawyers who have both represented detainees and have been given positions at Justice is secret, we have no way of knowing whether that has happened.

Finally, as Valerie stated, there is the question of conflicts of interest. Given the national security implications of such positions, I think we have the right to be concerned and I take great umbrage at the suggestion that I or anyone else whose loved ones are put at risk by these folks should just shut up and mind our own business.

I don't trust Eric Holder. He mysteriously "forgot" to disclose two amicus briefs filed before SCOTUS to Congress during his confirmation hearings:

When the committee was considering Mr. Holder's confirmation, it asked, as is standard practice, for copies of any briefs he had filed with the Supreme Court. According to National Review Online's Dana M. Perino and Bill Burck, he provided three "friend of the court" briefs - but failed even to mention the two most important ones, namely those concerning the case of Jose Padilla, the U.S. citizen accused of plotting with al Qaeda to blow up an American city. The Padilla case raised the question of whether American citizens can be held as enemy combatants and whether they have rights of access to American courts.

This is still an issue of virulent public dispute. In the Padilla case, Mr. Holder joined former Attorney General Janet Reno in arguing that an American citizen cannot be held as a detainee. His position on that question was of major interest during his hearing, yet he failed to disclose to the committee the fact of his involvement.

A Justice Department spokesman on March 10 offered this lame explanation: "In preparing thousands of pages for submission, it was unfortunately and inadvertently missed." That excuse is farcical. An AG nominee might inadvertently forget to provide a memo written to a law partner about whether the firm should accept a big tax case, but "inadvertently" forgetting a major Supreme Court brief is implausible in the extreme.

Arguing an issue before the Supreme Court is not such a common thing that one is likely to "forget" having done it, especially when one is specifically asked to disclose it. And when a person subsequently brings up the "forgotten" briefs multiple times once his confirmation has gone through, I don't think I'm unreasonable in suspecting bad faith and requesting that my government actually follow through on their promises of transparency.

Cricket -- I disagree that ethical lawyers are in the minority, but then I'm probably quite biased being the sister, mother, and friend of several.

That doesn't mean the unethical ones don't exist, of course. I've had to hire a few attorneys in my life and I've run up against the unethical type. One trait of the unethical ones is that they are not generally successful or prosperous in the long term. They either flounder about in the shallows or get caught.

IOW, the unethical ones tend toward the stupid. And generally, so do people who are virulently ideological. When you combine the two, you get the type of lawyer that will do the unethical things highlighted by Cassandra. And it really doesn't take very many of them to stink up the place for the intelligent ethical ones.

There are many people who believe with all their hearts that the military are violent, stupid, brainwashed baby killers. That's my husband they're talking about. And my Dad. And my father and brother in law. My grandfather and one uncle.

There are many people who will tell you that cops are corrupt bullies who enjoy pushing people around.

That's my son they're talking about. And my relative who was gunned down a few years ago trying to stop a deranged whack job. She left two small children and a grieving husband (another cop) behind.

There are many people who will tell you that lawyers are sleazy and unethical. Well, it would take more than two hands to count the number of friends I've had in my life who were attorneys.

And I've never met one who fit that description.

That said, if I encounter a soldier, Marine, cop or lawyer who has done wrong, I'm not going to turn a blind eye and pointing out they what they've done is wrong is not the same as trashing the entire profession.

Donna, please read my comment here:
"These lawyers...I think they are in the minority of attorneys. There are those who will tamper with witneses; destroy evidence, etc. They do because they know they can't win by the rules."

I was referring to unethical lawyers.

spd is quite right when he says that the opposition can make some powerful arguments. That is their job when they are on defense.
If I need defending, I want defense to be there for me because they believe in my cause. They are more effective. The ones who ingnore the rules in order to make their case probably couldn't make an argument in the first place.

The opposition we had was skilled, very knowledgeable and made some good arguments on behalf of their client. At one point, during the depositions, she started to badger me about something. Actually, she had at me twice. The first time, my lawyer told the recorder, 'Off the record,' and proceeded to tell the counselor what her limits were with regard to a philosophical belief. The deposition went on...and the second time she started in on me, I asked her where she was headed with her questions.

My attorney was...heh. He said "I am not going to worry about you on the witness stand."

Cassandra is correct that the rules of procedure are there to protect both clients and their lawyers. There is a reason why you have your (sorry spd and kj) pet shark with you when someone
is quetioning you.

Their case would have been more credible if their defense HAD been ethical.

Will no one answer my question about military lawyers and conflict of interest?

I don't know the answer to your question, Cricket. I would think that situation isn't much different than the human conflict any attorney feels when representing a client they don't sympathize with, or who they don't think has the right of a dispute.

Still, they have a role to play and we expect professionals to rise above their feelings and do their duty no matter how difficult that may be for them personally.

At any rate, my batting average is rapidly approaching zero this week so I think it would be best if I just sat this one out.

Cricket: Military lawyers operate under the same Model Code of Professional Conduct as their civilian counterparts. (Yes, the legal profession has a very detailed Code of Conduct, and it's not optional, either.) For JAG lawyers the Army/Navy/Air Force is their default client, but unlike their federal, state and municiple brethern and sisteren the Army can cause the JAG lawyer to represent a client other than the Service. Once that happens, all of the rules governing confidentiality, conflicts and representation immediately apply to that attorny/client relationship. And it's not easy to just walk away because your new client make you sick to your stomach, either. (See Rule 1.16).

Soooooooo... to your question: If a military lawyer doesn't zealously defend his client, that lawyer has breached the Code of Professional Conduct and may face sanctions, up to and including disbarment. The only "conflict of interest" involved, however, is between the attorneys ears.

Otay...you both answered my question. Interesting that you gave the same answer, but in a different way. I was wondering if there would be a compulsion to defend them, and if so, if there was a conflict, what it would be. You see how much I learn here?

Cassandra, all seriousness included: The criticisms about military lawyers are unwarranted...certainly even more so in light of the behavior of the current defense counsel.

I think you did a great job of making the comparison and drawing attention to it.
That is why I asked the question the way I did; would there be a conflict of interest? Is that what their detractors are thinking? Why would there be? I honestly did not know that the Code of Conduct also bound JAG/Army...I thought they sort of have their own version; the Uniform Code of Conduct, or something like that.

However, and I say this because deep down inside I am a vindictive little soul; if their counsel is behaving this badly...and in light of recent
protests over the health care bill, I think the defense counsel will dig their own graves.

"how do these men and women sleep at night knowing they have become everything they claim to hate?"

Their friends and fellow lawyers didn't care about it one way or another. Since they weren't getting censured by other lawyers, why would they care about being censured by anybody else. Especially when there is nobody else.

If lawyers don't police their own, nobody else will want to do the dirty work instead.

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